New York State Court of Claims

New York State Court of Claims

BARKER v. THE STATE OF NEW YORK, #2002-011-105, Claim No. 103469


Claim setting forth a cause of action for battery based on an allegation that claimant was physically attacked by correction officers is dismissed.

Case Information

LLOYD BARKER, 99 B 0916 The court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :
Footnote (defendant name) :
The court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Lloyd Barker, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The claim sets forth a cause of action for battery based on an allegation that claimant was physically attacked by correction officers on September 7, 2000 at Great Meadow Correctional Facility.

The elements of a claim for battery are (1) bodily contact, which is (2) harmful or offensive and (3) made with intent (
Masters v Becker, 22 AD2d 118).
On the day of the incident claimant was removed from his cell in the Special Housing Unit and frisked before being escorted outside for recreation. Claimant testified that during the frisk a correction officer started screaming at him that he had not spread his feet far enough apart. He was taken out into the yard where he was jumped on from behind and thrown to the ground. According to claimant, the correction officer said that claimant had kicked him. Claimant testified that on being taken to the ground his head was split open and his neck was twisted.

The version of events offered by defendant also involves correction officers employing force against claimant but only for the purpose of restraining claimant.

Justification is a defense to an action for battery (2 NY PJI 26 [Supp]). Justification in using physical force exists for a correction officer when an inmate resists or disobeys any lawful direction and it is necessary to maintain order or enforce observation of discipline (Penal Law §35.10[2]; Correction Law §137[5]). To establish the defense defendant must demonstrate that the officer used objectively reasonable force (see,
Higgins v City of Oneonta, 208 AD2d 1067).
Correction Officer Dennis Barden testified that on the day of the incident he went to claimant's cell to escort him outside for recreation. A waist chain was placed on claimant but no leg irons. At the frisk area claimant twice had to be told by Officer Robelli to spread his feet. According to Officer Barden claimant became angry and began loudly insulting Officer Robelli. As they went down stairs and outside claimant became louder and was so loud that he was stirring up other inmates who were outside for recreation. Eventually, Officer Robelli told claimant that his recreation was terminated because of his behavior. Claimant then spun around and kicked Officer Barden in the knee. Officer Robelli then kicked claimant's feet out from under him and took him to the ground where he was held until leg restraints were applied.

The testimony presents conflicting versions of what occurred. In claimant's version the force used was unprovoked and constitutes a battery. In the version offered by defendant force was used only to restrain claimant and was reasonable under the circumstances. Liability, or the absence of it, depends on crediting one version rather than the other.

Claimant's testimony that the officer became agitated to the point where it lead to an assault simply because claimant did not spread his feet far enough apart is less than compelling. Furthermore, his testimony indicating that nothing of any moment happened from the time of the frisk until he was taken down in the yard some time later makes his version less believable. Consequently, the testimony of Officer Barden is credited and accordingly, the claim is dismissed.


June 11, 2002
Saratoga Springs, New York

Judge of the Court of Claims